For many people, the uncertainty that comes from learning your loved one died without a will worsens the loss. Knowing that state law determines how your family member’s property will be divided removes another level of control in a time filled with change.
Jump ahead to these sections:
- New York’s Intestacy Laws Explained
- How Does Probate Work in New York There Is No Will?
- Who Typically Inherits Assets in New York If There Isn’t a Will?
- Frequently Asked Questions: Dying Without a Will in New York
New York’s intestacy laws ensure that the decedent’s belongings and property go to the nearest legal relatives, prioritizing the surviving spouse and children. Fortunately, the state offers a few different options for administering intestate estates, depending on the size and contents of the estate.
New York’s Intestacy Laws Explained
Intestacy laws fill in the gap created when someone dies without a will. New York’s intestacy and probate laws provide structure and consistency for families while facilitating the timely transfer of the estate’s assets.
Intestacy laws determine who inherits based on which family members outlive the decedent, including any spouse. Rather than splitting the estate among many family members, friends, and causes, as a will might, the intestacy laws tend to consolidate the inheritance among a few people.
Intestate estates go to the first qualifying heir or class of heirs. That means all siblings get equal portions of the estate rather than just one child inheriting. To find out who inherits in your specific family, apply the intestate succession laws to your situation.
Keep in mind that intestacy laws only govern the decedent’s intestate estate. The intestate estate consists of the property they owned at their death, less debts, liens, and encumbrances.
Even if they didn’t leave a will, a portion of the decedent’s estate might not be subject to intestacy laws. That’s because many people create non-probate transfers for their property. These transfers require no authority from the probate court to take effect, and they take priority over any bequests in a will and intestacy laws.
While they may sound complicated, non-probate transfers are the easiest form of estate planning. They included payable-on-death (POD) beneficiary designations that you fill out when opening a new bank or financial account. Most financial institutions make it simple to update or add a POD beneficiary on existing accounts.
We also commonly find beneficiary designations on life insurance policies, retirement accounts, and investment accounts.
Non-probate transfers also take the form of joint ownership accounts, real estate, and cars. Anytime an asset is titled as joint tenants, the surviving owner becomes the full owner after the other’s death. Joint tenancy is especially common for married people.
Finally, property in a trust is also exempt from the laws of intestacy, even if the decedent did not leave a will.
How Does Probate Work in New York There Is No Will?
Probate cases take place in the state’s Surrogate’s Court, and the purpose is to grant an heir or other person the authority to take care of the decedent’s estate.
When someone dies, their assets remain titled as they were at the time of their death. The goal of probate is to update the assets to get them in the possession of their new owners or to reflect their new ownership.
The court appoints an heir or other person to handle the estate’s transactions. The complexity of an estate, and consequently, the personal representative’s duties, varies depending on the contents of the estate.
The personal representative finds and secures the estate’s assets, which may be as simple as contacting banks to notify them of the decedent’s death and stop transactions. Sometimes, estates require more complicated efforts, like immediately repairing a home to protect it from the elements.
They also pay any outstanding debts, including taxes, and ultimately distribute the remaining assets to the decedent’s heirs.
Depending on the size of the estate, New York offers two different probate methods.
Administration without a will
The court issues letters of administration to one of the decedent’s heirs, which gives them the authority to act on behalf of the estate. When the decedent dies without the will, the probate case is called an administration.
The heir files a petition with the court to start the case, which details the decedent’s assets, debts, and family members. People without an attorney can electronically file their cases and documents through the state’s e-filing system rather than going to the courthouse.
You will have to provide notice to other possible heirs. The decedent’s distributees can contest your request to be appointed as personal representative.
Ultimately, the personal representative resolves all of the final business of the estate. That includes paying outstanding bills and debts, gathering and preserving the decedent’s property, and distributing the remaining assets to the heirs.
Simplified probate - voluntary administration
Estates with less than $50,000 of personal property may be able to skip a few steps and save time through the simplified probate process. However, estates that include real property, like a house, do not qualify for the small estate process.
Through the simplified process, an heir opens a voluntary administration case. The court appoints an heir, called the voluntary administrator, to collect and distribute the decedent’s personal property. The court then issues a certificate for each asset, and the certificate gives the voluntary administrator the authority to act.
New York offers a small estate DIY forms program to make the process easy for people navigating the process without an attorney.
Real estate as the sole asset
New York probate law creates a unique situation for estates composed only of real estate. State law vests real estate in the decedent’s heirs at the decedent’s death. That means legal ownership technically passes upon the decedent's death, much like the non-probate transfers discussed above.
Of course, that can be complicated if you want to sell the property. Title insurance companies generally have strict requirements to issue a real estate buy-sell transaction policy. They may require additional supporting documents to create a clear, indisputable chain of title.
In that situation, an heir can open a probate case to be appointed personal representative so they can file a personal representative’s deed. That’s a special deed that personal representatives use to convey property.
Alternatively, you can petition the court for permission to sell the property, saving you from opening an estate. Finally, the title company might accept an heirship affidavit or even have one of their own. These options would allow you or a disinterested party to affirm your right to transfer the property.
Ultimately, if you find yourself in this scenario, try to find out exactly what the title company needs from you so you can comply with their policies.
Who Typically Inherits Assets in New York If There Isn’t a Will?
When someone dies without a will in New York, the state’s intestacy laws provide the guidance needed to determine who inherits the decedent’s property. The intestacy laws determine who inherits by creating a priority list detailing the first person or group of people with priority to inherit.
The spouse and children are the two groups of people most likely to inherit. When a married person dies, the spouse inherits the entire estate, providing that the decedent did not have children. If a married decedent also had children, the spouse inherits the first $50,000 of the intestate estate plus one-half the balance. The children get the other half.
Alternatively, the children inherit the decedent’s entire estate if the decedent was unmarried at their death.
When an unmarried person dies without children, their parents stand to inherit their estate. If their parents have already passed, their siblings equally divide the estate.
If needed, the intestacy laws look back to grandparents, aunts and uncles, and then cousins for inheritance. Given that the laws of intestacy direct us to look back several generations to find a relative, it’s rare to find someone with truly no heirs.
Frequently Asked Questions: Dying Without a Will in New York
Some families are very straightforward, making it easy to predict what happens when someone dies without a will. Other families are much more complex, and you may need an attorney to lend their expertise to learn how to correctly apply the intestacy laws to your situation.
What happens when your parent dies without a will?
Your inheritance upon the passing of a parent depends on whether they were married at their death. If they weren’t, you and your siblings inherit the entire intestate estate.
If your parent was married, their spouse inherits the first $50,000 of the estate plus one-half of the balance. You and your siblings inherit the other half.
What are a surviving spouse’s rights if there’s no will?
If the decedent has no children, the surviving spouse will inherit the entire estate. However, if the decedent did have children, then the surviving spouse inherits the first $50,000 of the estate plus one-half of any additional assets.
Are there any probate exemptions if you die without a will in New York?
Property transfers via a payable-on-death designation, trust, or joint tenancy are exempt from probate in New York. These assets will transfer without any need for authority from the probate court. The transfer to the named beneficiaries supersedes the laws of intestacy.
Additionally, New York offers a simplified probate process called voluntary administration for small estates valued at less than $50,000.
How long does probate take when there is no will?
The length of time it takes to completely administer an estate varies depending on several factors. An uncomplicated, straightforward estate may only take a few months for the personal representative to pay outstanding bills and distribute assets.
Alternatively, estates with complex assets, like a business that needs to be dissolved, take longer to reach the distribution stage. Additionally, it will take longer to wrap up the estate when there is greater conflict requiring the court’s intervention. In intestate estates, disputes over who qualifies as an heir can greatly prolong the process.
Who is considered next of kin in New York?
Next of kin varies based on who survives the decedent. The spouse, if they exist, is the next of kin. The children, grandchildren, parents, siblings, and grandparents may also be next of kin, in that order.
Estate Plan to Customize Your Estate Distributions
While New York law makes for a relatively user-friendly process, you can make it even easier for your family by estate planning. Besides reducing the workload for the personal representative, you can make gifts to causes and charities that you care about, remember close friends, and customize disbursements to the family members you want to see with your lifetime of earnings.
- New York State Senate. “Legislation Chapter 17-B Estates, Powers & Trusts.” Consolidated Laws of New York, Nysenate.gov.
- “Probate.” New York State Unifed Courts System. 4 May 2021, Nycourts.gov.